Punjab-Haryana High Court
Balbir Singh vs Kailash Chander And Another on 18 December, 2013
Mamta
CR NO.7800 OF 2013 1 2014.01.09 10:49
I attest to the accuracy and
integrity of this document
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CR NO.7800 OF 2013
DECIDED ON 18.12.2013
Balbir Singh ........Petitioner
v/s.
Kailash Chander and another ..........Respondents
CORAM HON'BLE MR. JUSTICE S.P.BANGARH
Present: Mr.Amit Khatkar, Advocate
for the petitioner.
S.P.BANGARH,J (ORAL)
Respondent no.1, herein, has filed suit for permanent injunction against the respondent no.2 before the trial Court seeking to restrain the latter from interfering in the construction that is being raised by the former. It has also been prayed that respondent no.2 should be restrained from demolishing the existing structure of the building of house tax unit No.229/AB/10, Garhi Mohalla Hansi, which is completely damaged and can fall at any time and can cause loss to public at large, passersby and neighbours and further the respondent no.2 be directed to deliver the proposed site plan of the building supra that was submitted on 03.04.2006 by depositing required fees for sanction of the same.
This suit is being contested by the respondent no.2 Mamta CR NO.7800 OF 2013 2 2014.01.09 10:49 I attest to the accuracy and integrity of this document on various grounds by way of filing written statement.
During the pendency of the suit, the present petitioner filed application Annexure P3 in terms of order 1 rule 10 read with Section 151 CPC seeking his impleadment in the suit on the ground that in the guise of the present suit, the respondent no.1 wants to encroach over the property, with which, he has no concern and he also wants to encroach upon the common municipality street, as also, he wants to construct pillars on both the sides of the street and, thereon, he wants to raise construction without any legal right. It was further averred in the application that the petitioner and other inhabitants of the street complained against the action of the respondent no.1 to the respondent no.2, but the latter did not take any action. It was also averred that the property pertaining to the suit is situated at the corner of the street where the street turns at ninety degree's angle. If the respondent no.1 raised construction on both sides of the street, he will also raise construction over the pillars to cover the street illegally and then it will not be possible for the vehicle to enter in the street. The petitioner learnt about the present suit on 08.04.2013 and then he moved the present application. So, he sought his impleadment in the suit as defendant.
This application, on the other hand, was opposed by Mamta CR NO.7800 OF 2013 3 2014.01.09 10:49 I attest to the accuracy and integrity of this document the respondent no.1 by filing written reply, thereto, averring, therein, that the present application has been filed by the petitioner in collusion with respondent no.2 simply to prolong the present litigation. He also averred that no relief has been claimed by him against the petitioner or any other person of the locality. He further averred that the relief which has been claimed in the suit is only against respondent no.2 and not against any other person. He also averred that the petitioner is known as bad character of mohalla, as well as, of Hansi and he was involved in many criminal cases. It was denied that in the guise of the present suit, he wants to encroach upon the public street or he wants to re-construct his house in place of old construction and it was denied that he wants to construct two pillars on both the sides of the street and, thereon, he wants to raise his construction without any legal right. Rest averments contained in the application were controverted and prayer for dismissal, thereof, was, thus, made.
After hearing both the sides, the trial Court vide order dated 04.10.2013, dismissed the application. Aggrieved against the same, the petitioner has filed the instant civil revision with prayer for acceptance, thereof, and for his impleadment as defendant in the suit that has been filed by the respondent no.1 against the respondent no.2 Mamta CR NO.7800 OF 2013 4 2014.01.09 10:49 I attest to the accuracy and integrity of this document before the trial Court.
Learned counsel for the petitioner contended that the trial Court has not appreciated the actual and factual position of the case and the impugned order has been passed only on the self presumption and the same has been passed only on the basis of surmises and conjectures and, therefore, the same is liable to be set aside.
Thoughtful consideration has been given to the contentions raised by the learned counsel for the petitioner.
Learned counsel for the petitioner placed reliance upon Thomson Press (India) Ltd. v. Nanak Builders & Investors P.Ltd. and others 2013(2) RCR (Civil) 875, passed by the Hon'ble Supreme Court of India, wherein, in a suit for specific performance, the purchaser was ordered to be made a defendant in the suit.
This judgment has been perused, but the principle laid down, therein, cannot be made applicable to the case in hand which is not a suit for specific performance. On the contrary, the present suit is for permanent injunction, wherein, no relief has been claimed against the petitioner. When no relief has been claimed against the petitioner, he could not be allowed to be added as defendant in the suit. It is not the case that the respondent no.2 has been colluding with the respondent no.1.
Mamta
CR NO.7800 OF 2013 5 2014.01.09 10:49
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integrity of this document
Even, if the petitioner is impleaded as defendant, the alleged construction raised by the respondent no.1 on the alleged street cannot be stopped, as this can be stopped only in a suit. It is not the case of the petitioner that he will set up a counter claim in the suit and shall seek restraint order against the respondents from raising construction on the public street. If the construction is allegedly being raised on the public street by the respondent no.1, then the respondent no.2 shall rise to the occasion to demolish such construction and if that is not done by the latter, in that event, the petitioner in the representative capacity, may file suit with the permission of the Court for demolition of such alleged construction. But, at this stage, petitioner is not a necessary party and he was rightly not allowed to be impleaded as defendant in the suit by the trial Court vide the impugned order.
This Court in Kamla Devi and others v. Surinder Kumar and others 2006(4) RCR (Civil) 780 dismissed such application under Order 1 Rule 10 CPC holding, therein, that the petitioners may file a separate suit for declaration of title. It was held that in a suit for ejectment of the tenant, third party claiming ownership in the suit property is not a necessary party.
Hon'ble Allahabad High Court in Smt. Chanda Devi v. Mamta
CR NO.7800 OF 2013 6 2014.01.09 10:49 I attest to the accuracy and integrity of this document Santosh Kumar and others 2011(84) ALR 629 also held that in a suit for ejectment, the only question to be considered as to whether landlord is entitled to possession or not on the grounds mentioned in the suit. It was also held that trial Court rightly refused the impleadment of the petitioner.
This Court in Mustak Amhed v. Shamlat Patti Sikhan 1993(1) RRR 387 also held that Court should not add a person as defendant in a suit when plaintiff is opposed to such addition.
Hon'ble Madras High Court in Antony Devaraj v. Aralvaimozhi (Kurusadi) Devasahayam 2004(3) RCR (Civil) 68 also held that when no relief has been sought for against the proposed defendants, they are neither appropriate nor necessary parties. They can figure as witnesses during trial.
In view of the aforementioned judgments, it must follow that when no relief is being sought against the petitioner by the respondent no.1, the former is neither appropriate nor necessary party in the suit.
If at all, the petitioner is aggrieved, he may file a separate suit against the respondents and he can take all the pleas that he wants to take in the written statement that would have been filed by him after his impleadment.
There is, thus, no illegality or impropriety in the impugned order that is, hereby, upheld and affirmed. Mamta
CR NO.7800 OF 2013 7 2014.01.09 10:49 I attest to the accuracy and integrity of this document Resultantly, the revision fails and is, hereby,
dismissed with no order as to costs sans prejudice to the merits of the main suit.
(18.12.2013) (S.P.BANGARH) mamta JUDGE